Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: Higher Regional Court, Judgment 29 U 1866/17
    • Mitgliedstaat: Deutschland
    • Gebräuchliche Bezeichnung:Gesundheitsbezogene Angaben über Methode zur Entfernung von Körperfett - Bye-bye Hüftgold
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 05/07/2018
    • Gericht: Oberlandesgericht
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: health and safety, misleading advertising
  • Artikel der Richtlinie
    Misleading and Comparative Advertising Directive, Article 7 Misleading and Comparative Advertising Directive, Article 7
  • Leitsatz

    Prohibited advertising with health claims.

  • Sachverhalt

    The plaintiff, the Verband Sozialer Wettbewerb, is a registered association aimed at the safeguarding of the commercial interests of its members.

    The secondary intervener is a manufacturer of equipment for cryolipolysis treatment.

    The defendant carried out cryolipolysis treatments using equipment of the secondary intervener. It advertised on the Internet with certain statements that promised the disappearance of body fat.

    The plaintiff among whose members were doctors’ and pharmacists' chambers, as well as numerous companies in the medical and pharmaceutical sectors, was of the opinion that the advertised statements were misleading and had, therefore, to be omitted as unfair.

    After an unsuccessful warning, the plaintiff filed a claim and applied for a cessation order that the defendant refrains from advertising cryolipolysis treatment with the information abovementioned.

    The First Instance Court (Landgericht) allowed the plaintiff’s claim.

    The intervener filed an appeal before the Court of Appeal (Oberlandesgericht).

  • Rechtsfrage

    The main legal issue, in this case, was to determine if the advertisement on an aesthetic treatment done by the defendant constituted a misleading practice in the sense of article 5 paragraph 1 UWG, in this case misleading health-related advertising.

  • Entscheidung

    The Court considered the advertised aesthetic treatment as a health-related issue. According to case law, health-related advertising is misleading if the health-related statement is based on studies that do not support this statement.

    As a general rule, article 7 of Directive 2006/114/EC is decisive for the burden of proof and argumentation for health-related claims.

    Therefore, the Court of Appeal (OLG) checked if the plaintiff had complied with its legal duty to prove that the health-related statements did not correspond to certain scientific evidence, which the plaintiff had indeed done.

    It was then the duty of the defendant to prove the scientific validity of its statement, which based on methodological deficiencies and conflicts of interest of the study authors was not successful.

    Finally, the Court of Appeal (OLG) verified that the contested statements were also likely to induce the consumer to make a transactional decision which he would not have taken otherwise, in order to comply with the requirements of article 5 paragraph 1 sentence 1 UWG.

    Volltext: Volltext

  • Verbundene Rechtssachen

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  • Rechtsliteratur

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  • Ergebnis

    After appreciating the misleading character of the health-related advertising done by the defendant, the court of appeal (Oberlandesgericht) rejected the defendant's appeal against the judgment of the First Instance Court (Landgericht München I of 7 April 2017, as rectified by order of 2 June 2017), however inserting certain statement between points I.7 and I.9